It might be assumed that alleged spammer e360 Insight LLC hadn’t bargained for such a public fracas when it decided to take on UK-based anti-spam organisation Spamhaus in what has turned into the infamous court case of the year. Pry further and it becomes clear that the stand-off between the two taps a deeper well of bitterness that has been building up for some time, and is primed for new trouble even now.

On September 15th, a court in e360’s home state of Illinois ordered UK-based anti-spam organisation Spamhaus to pay the US company $11.7 million in compensation for adding it to a spam blacklist and causing an unknown quantity of its direct mail to be blocked. Judge Charles Kocoras issued a Temporary Restraining Order that requested that Spamhaus remove all reference to e360 Insight from its Register of Known Spam Operations (ROKSO), and state that it had been put on the blacklist erroneously.

The judge appeared to accepted e360’s case in its principle complaint, that the company was not sending spam and was not a spammer, at least as defined by US law.

As has become its tactic in such situations, Spamhaus ignored the judgements and fine, arguing correctly that The US-based Court had no legal jurisdiction over Spamhaus, a UK company. The 360 Insight organisation then requested that the court rule that ICANN (Internet Corporation for Assigned Names and Numbers), and its domain registrar Tucows, should suspend the Spamhaus domain name. ICANN said ‘no way’ in no uncertain terms and the judge eventually saw the blind alley signs and denied the request.

Spamhaus still describes e360 Insight as a spammer, claiming its head David Linhardt lied under oath in order in certain respects to further a spurious case against the UK group. Meanwhile, e360 has made it clear it considers Spamhaus “self-appointed vigilantes”. The US court has been shown to be powerless in the case, both sides remain defiant, and nothing appears to have changed from the day it all started. But how and why did such a case get so far in the first place?

“The Illinois ruling shows that U.S. courts can be bamboozled by spammers with ease, and that no proof is required in order to obtain judgments over clearly foreign entities,” said Spamhaus in a public statement that encapsulates its amazement that the US CAN-SPAM legislation can allow such judgements to occur at all.

Cut and dried judgements in favour of alleged spammers, however controversial, are still extremely rare, as few of the companies or individuals are prepared to spend money defending themselves, and fewer still win the argument.

One explanation might lie with the particular individuals involved on the e360 side of the battle. One accusation Spamhaus have levelled at Linhardt is that he is a front for, and well connected to, well-known alleged spammer, Brian Haberstroh, founder of New Hampshire company Atriks Inc.

Poisoned from the past

Haberstroh has been involved in a number of controversies before, not least that of his 2004 face-off with Jay Stuler, a lone anti-spam campaigner who was sued by Haberstroh after complaining to his ISP about receiving spam from Atriks Inc. Stuler, who now keeps a low profile, claimed at the time Haberstroh was using the courts as a way of shutting up his ‘little guy’ complaints as a way of protecting his operations.

According to Spamhaus – which did not reply to requests for comment on the issue - Haberstroh has since then found it more and more difficult to gain hosting for his operations, leading his to use David Linhardt as a front with spam mailouts the return favour. The evidence is contained in republished DNS records that show a domains ‘humungous.biz’ and ‘infiltrator.us’ registered to e360insight using the street address of Atriks.

Spamhaus has made public on its website a series of emails from 2004 where David Linhardt claims he has no association with Atriks, depite the fact that two years later he decides to own up to a link.

“It appears that you are listing our IP addresses associated with bargaindepot.net [an e360insight operation]. The reason provided is because Atriks mailings were being used to drive traffic to bargaindepot.net. We recently addressed this issue and have disassociated ourselves from Atriks and Mr. Haberstroh. We are no longer doing business with him or anyone else within his organisation.”

Refusing to stop listing the two as linked, the relationship sours further over the summer of 2006, culminating in a blunt warning from Linhardt.

“Someone will take you down or the ISP's that use your list will be sued for illegal restraint of trade. Count on it. Enjoy the rest of your wasted life,” he spits. The htreat has turned out to be more than bluster.

Whether Haberstroh and Linhardt are spammers could depend on which set of laws they are being judged by - everyone accepts that US and UK/European laws put the emphasis in different places. There is no question, however, that Haberstroh is a committed direct mailer, even to the extent of attracting a write-up on Wikipedia for his activities, in particular the Virtual Mail Delivery Agent software he is said to have distributed up to 2005.

His entry in the Spamhaus ROKSO lists a huge number of registered domains. This is not the domain list of a man who is likely to give up easily, and it was always likely that he and his associates - possibly including Linhardt – were going to fight anyone standing in their way. For some time now that has been Spamhaus and its Block List that has caused their operations such problems.

From being shadowy characters almost nobody has heard of except when a court case beckons, the Spamhaus v e360insight case could mark a change of tack. Spammers, alleged or otherwise, have grown rich enough to fund legal cases, and high-profile enough not to care about the risk of adverse publicity. Nobody goes down without a fight, and the fight is still very much on.